from the when-push-polls-backfire dept

The broadband industry is continuing its brave campaign to convince the public that gutting all oversight of growing monopolies like Comcast somehow ends well for the American consumer and smaller Comcast competitors. Last week this involved the cable industry's top lobbying organization (the NCTA) working with the Daily Caller on a poll the industry clearly hoped would show that the public really hates net neutrality protections. The full survey of 2,194 Americans (pdf) uses omission and leading questions to nudge participants toward
taking the view that net neutrality protections are "burdensome regulations" imposed by an out of control government.

But it didn't work out that way.

As it turns out, 61% of the survey participants said they support rules prohibiting giant ISPs like AT&T and Comcast from being able to use the lack of last-mile competition in broadband to their anti-competitive advantage:

Note, again, that just 18% truly oppose net neutrality rules, while 21% still somehow have no apparent idea what any of us have been talking about for the better part of the last decade. And while the results pretty clearly suggest that the majority of the public supports the rules (which previous data has already suggested), this being the post-truth era, ISP-funded think tank employees like the AEI's Roslyn Layton were quick to insist the survey somehow proved the exact opposite:

Layton, one of Trump's telecom advisors, not only intentionally misstates what the survey actually found -- but she pushes for Congress to proceed on a new net neutrality law. As we've noted numerous times, the FCC knows it may be on shaky legal footing as it tries to roll back the rules via FCC process, since the agency will need to show that the broadband market has changed substantially since the court upheld the rules last year. As such, large ISPs (and friends) are pushing for a new law to "settle" the issue once and for all. You're to ignore that AT&T, Comcast, Verizon and Charter will be the ones writing it, ensuring it has so many loopholes as to be effectively useless.

The NCTA had only modestly better luck with other questions by forcing consumers to pigeon-hole their thoughts into arguably narrow silos. One question for example, asks "when it comes to the role of the federal government in regulating access to the Internet, which of the following comes closest to your view, even if none are exactly right?" Users were then forced to choose one of several narrow options, the majority answering that they thought it best that the government engage in a "light touch" approach to the internet where the government only acts if consumers are harmed:

So one, despite large ISP hand-wringing, we've noted time and time again that the FCC's 2015 net neutrality rules weren't really particularly onerous. Indeed, for those who actually understand them, they clearly are "light touch." They specifically blocked themselves from making use of any of the more onerous provisions of Title II (and, no, they can't just ignore that "forbearance" process and change their minds). In fact, the rules didn't even ban ISPs from using arbitrary usage caps to hamstring competing services (aka "zero rating"), saying the FCC would only step in during obvious evidence of harm (precisely what the majority of the respondents indicated they wanted). And contrary to repeated ISP claims, the rules did not stifle investment.

"The problem with the "ability to set specific prices" and "take action if consumers are harmed" survey answers is that both of them accurately describe the current federal system. The FCC does have the ability to set specific Internet prices, but it doesn't do so and has no intentions of doing so. The FCC's 2015 net neutrality order did not set specific prices for home and mobile Internet service but used Title II authority to let consumers complain about prices and practices that are unjust or unreasonable. In other words, the FCC's current approach is to "monitor the marketplace and take action if consumers are harmed," the approach supported by the majority of people in the cable survey."

Despite ISPs ceaselessly whining that the FCC overreached when it comes to net neutrality, people need to understand that this is traditionally an agency -- under both parties -- that happily turns a blind eye to predatory duopoly behavior, especially as it pertains to limited competition and how that results in Americans paying significantly more money for broadband than their European counterparts. That the FCC was going to seriously wake up to these problems and begin fully holding these duopolies accountable has never truly been a worry -- even under recent FCC boss Tom Wheeler.

You'll recall the FCC's $300 million broadband map intentionally omitted including pricing data at ISP request (include it, and somebody might just realize the industry isn't competitive). The FCC (again, under both parties) has also long turned a blind eye to the use of usage caps and overage fees to levy tolls on these uncompetitive markets (and competitiors), and the use of misleading below-the-line fees to jack up the cost of service after users sign up at the advertised rate (read: false advertising). This is, "light touch" regulation by any definition. To a fault.

And, contrary to public wisdom and large ISP jargon, the FCC passing some fairly modest net neutrality rules -- and returning ISPs to common carriers under Title II so those rules could be adequately enforced (something you can technically thank Verizon for) -- doesn't mean that was going to change anytime soon.

It's important to understand that the majority of ISPs were okay with the lion's share of the FCC's net neutrality rules, given they gave ample leeway for things like zero rating, and only truly prohibited things most ISPs never intended to do anyway for fear of a PR backlash (blocking a single website or service, for example). The real fear among providers like Verizon is that the FCC might, under some future theoretical leadership, actually wake up and decide to use its authority granted by the Communications Act to do something about the lack of competition in the sector.

To thwart this theoretical and unlikely future, FCC boss Ajit Pai's current plan is to gut FCC authority over broadband and shovel it over to an over-extended, under-funded, and jurisdiction-limited FTC, where large ISPs know these problems will fall through the cracks. Most reasonable folks realize that until we somehow bring more competition to bear on the sector, we're likely going to need a bit more regulatory supervision than we might otherwise like for some of the least competitive toddlers in American industry. After all, even the cable industry's own survey says so.

from the dollar-per-holler dept

On his first day new FCC Boss Ajit Pai repeatedly and breathlessly insisted that consumers and the digital divide would be his top priority. The problem: that dedication was directly contradicted by not only Pai's past voting record at the agency, but his first actions as agency head. Out of the gate Pai undermined an FCC legal case against prison phone telecom monopolies, scrapped an FCC plan to bring competition to the cable box, killed all ongoing zero rating inquiries and began laying the ground work for killing net neutrality, and prevented nine already-approved ISPs from helping the poor via the agency's Lifeline program.

Unsurprisingly, it didn't take particularly long for some news outlets to realize that Pai's words weren't supported by his actions. Both The Washington Post and the New York Times penned editorials blasting Pai, most notably for his ongoing disdain for net neutrality, which has broad, bipartisan support.

Driven to defend Pai's selection as FCC boss for obvious reasons, ISPs got right to work fighting back via their traditional weapon of choice: bullshitters for hire. Shortly after the Post and Times pieces surfaced, contrasting op-eds quickly popped up in newspapers and websites nationwide claiming Pai is actually an incredible boon to consumers, competition and innovation. Most of these op-eds failed to adequately disclose the authors' financial ties to large broadband providers, or the fact they take money while pretending to be objective analysts -- often including Congressional testimony.

Fred Campbell, a long-standing ISP-funded "consultant," penned a piece over at Forbes blasting the Post and Times for "doublespeak," while insisting that Pai is secretly a hero of the people:

"Doublespeak is language that disguises or even reverses the meaning of words in order to disguise the nature of the truth. A flurry of attacks on Ajit Pai, the new chairman of the Federal Communications Commission, are full of it. It’s clear that Pai is serious about closing the digital divide between those who use cutting-edge communications services and those who do not."

Ah the post-truth era, when those that spend the most time practicing doublespeak endlessly whine about doublespeak.

Look, if you actually talk to any genuine consumer advocate in the telecom space (they're easy to spot: they're the ones with limited budgets and shittier suits), they'll quickly tell you that while Pai is a nice guy -- he's a water carrier for industry, rarely if ever challenging their positions on any issue of consumer note. You only need look at his voting record, and the numerous times he not only voted down indisputably pro-consumer initiatives like net neutrality, but refused to hold companies like AT&T accountable for outright fraud -- even when that fraud involved the Lifeline program Pai professes to now adore.

Campbell's editorial was one of numerous, similar missives. Rick Boucher, one-time respected Congressional fair use champion, now works at Sidley Austin, a law firm that effectively acts as an AT&T policy arm. That direct financial tie isn't really made clear in an op-ed over at Light Reading, where Boucher informs readers that, despite his nonexistent track record on the subject, Pai will somehow be a champion of expanded broadband coverage:

"Chairman Pai recently announced the formation of the Broadband Deployment Advisory Committee, a task force that will offer "specific" recommendations to speed broadband deployment and, in his words, "close the digital divide."

Pai's action is an excellent first step towards accelerating broadband deployment (and adoption) throughout the country. Getting great minds together to hack a solution is both wise and urgent. And perhaps most important, it's a sign that fact-based decision-making is now the order of the day at the FCC."

But forming a committee to talk about the digital divide isn't an actual solution to anything -- especially expanded broadband coverage. And it certainly doesn't magically obliterate Pai's anti-consumer, and anti-startup voting record. If there's an FCC plan to actually shore up competition or bring broadband to the under-served (like the FCC's recent vote to ensure low-income users can use their $9.25 monthly Lifeline credit for broadband), you can be fairly certain Pai voted against it. It's not really something that's open to debate. Well, unless you're the type that's paid to pretend that generally-accepted facts are up for debate.

It's important to understand that broadband providers and politicians adore slathering meaningless platitudes upon the "digital divide" because it earns them cheap political brownie points without having to do much of anything. In fact that's Comcast's entire lobbying MO, and the primary reason they renamed their top lobbyist the company's "Chief Diversity Officer." It's a simple schtick: distract the public by professing your support for closing the digital divide with the bare minimum of effort, while denying the singular problem that causes broadband coverage gaps and high prices in the first place: a lack of competition.

"Unlike the Federal Communications Commission’s previous head, new FCC Chairman Ajit Pai is putting consumers first, not net neutrality. The sad reality is that the previous FCC did the bidding of the biggest edge providers, both on the issue of net neutrality and opening up the cable box market, as I will explain."

Up is down, black is white. We've long noted how the broadband industry has tried to downplay net neutrality issues by claiming that everything is somehow Netflix's fault, and incumbent broadband providers are just misunderstood, innocent daisies. Logical cohesion is generally missing from this narrative, but Pai himself has played a starring role in claiming repeatedly that -- in stark contrast to all available evidence -- it's the edge (content and service companies not-coincidentally challenging the industry's TV stranglehold) providers that are the real internet villains.

This disconnect between reality and dollar-per-hollar rhetoric is nothing new, especially in telecom. Former FCC boss Michael Powell, now the cable industry's top lobbyist, made a career out of paying endless lip service to consumers to the acclaim of industry sockpuppets, while his actions repeatedly worked to undermine oversight of giant companies like Comcast (to obvious end). That's because the real goal for most of these folks is something you may have ferreted out already: protection of loyal campaign contributor revenues above all else. If anything, there's an active disdain for the consumer.

If Pai actually were "pro consumer," his voting record would reflect it with minimal debate. And consumer advocates (the ones that actually spend ten hours a day fighting the good fight to little acclaim or profit) wouldn't be issuing warnings about "empty rhetoric" and "Orwellian" behavior at the FCC. At the end of the day you have to wonder: if you need to covertly pay people to support your argument, what kind of argument do you actually have?

from the put-your-money-where-your-mouth-is dept

We've repeatedly noted how for some stupid reason, net neutrality is treated as a partisan issue in Washington -- with Democrats (generally) in support, and Republicans (generally) opposing the idea. It's an absurd, myopic paradigm given the fact that net neutrality has broad, bipartisan consumer support. Most people want the internet to function as a relatively-level playing field. Everybody wants to be able to access the content and services of their choice without interference from the likes of Comcast and AT&T, who seem hell bent on using their monopoly over the last mile to their anti-competitive advantage.

With the looming specter of a net neutrality rule repeal under Trump, the GOP, and new FCC Boss Ajit Pai, a number of Democratic Senators (including Ron Wyden and Ed Markey) held a press event (video) warning that if the GOP and FCC try to repeal net neutrality, it will result in a "political firestorm" they may not be entirely prepared for. The Senators were quick to recall that roughly 4 million consumers reached out in support of the FCC's net neutrality rules a few years ago, a number Markey proclaimed would look "miniscule" in comparison to the looming backlash against the rules' repeal.

"Despite what the cable companies and Republicans say about net neutrality, there is nothing broken that needs fixing,” said Senator Markey, a member of the Commerce, Science and Transportation Committee. “I will oppose any regulatory efforts, including repeal, forbearance, interpretative rule, or refusal to enforce existing rules, as well as any legislative efforts to undo or roll back the Open Internet Order. We stand united in this fight to ensure that all Americans have access to a free and open Internet."

While it's true that the backlash to an attack on net neutrality could make SOPA and PIPA look like a beach-side picnic, the repeal won't arrive in the way the agency's rules first arrived. With the process of repealing the rules within the FCC's existing regulatory framework a giant bureaucratic headache that would require another very public comment process, the ISPs (and the politicians that love them) likely have another tactic in mind -- at least based on my 20 years, ten hours a day, of watching the telecom sector (and every other industry) dominate both parties of Congress.

At first, that will involve having Pai simply refuse to enforce the rules as they exist now (which we already saw with Pai's decision to scrap the FCC's zero rating inquiry). Pai's job in this stage play will be to pay empty lip service to things like the digital divide, while generally keeping the FCC focused on bland, non-controversial policies until the real hangman (a campaign-contribution soaked Congress) arrives.

From there, the GOP has quietly been making it clear they want to push a Communications Act rewrite that will focus on rolling back the FCC's classification of ISPs as common carriers under Title II, therefore obliterating not only net neutrality -- but the FCC's ability to act as broadband watchdog entirely. This being a new, charming post-truth era, this assault on net neutrality, broadband provider oversight and accountability will most likely be dressed up as a massive boon to job creation, broadband expansion, and the nation's puppies.

Expect it to be named something along the lines of The Making Broadband Great Again Act of 2017.

This bill, whether it comes as a Communications Act rewrite or some other bill, will also probably claim to put the net neutrality debate to bed by including a few net neutrality restrictions even large ISPs don't actually care about (like banning them from outright blocking websites). What it won't do is address any of the hot-button areas where the net neutrality debate is occurring right now, like zero rating, interconnection, or the use of usage caps and overage fees. Given it will certainly be written in part by AT&T, Verizon, Comcast and Charter lawyers, it will just as certainly contain other loopholes to ensure their satisfaction.

Whatever this bill winds up looking like or is called, it will be (and already is on some fronts), portrayed as a "compromise" that Democrats will be told they must support if they're to be considered "serious" in their pledge to protect net neutrality and the public at large. But given the goal of removing oversight from the likes of Comcast, the bill itself will likely hurt more than it helps, and if these Democratic Senators actually want to show they have anything resembling a spine, they'll need to stage fierce opposition to the bill to prove their dedication to a healthy internet is more than just smoke and mirrors.

In light of a Congress that long ago made it clear that it prioritizes telecom cash contributions over consumers, the best "solution" for net neutrality at this juncture would be leaving the existing rules -- and the FCC's authority over broadband providers -- intact.

Over the last 40 years, secrecy in all aspects of the judicial process has risen to literally unprecedented levels.

It's not just the FISA court -- which, in contrast, is probably more transparent than it's ever been. It's the regular court system where criminal prosecutions are pursued. Documents which used to be easily accessible by any member of the public are now withheld by the request of the government with alarming -- and increasing -- frequency.

That traditional aversion to court secrecy has been overcome in the last few decades. To take but one example, the case name In re Sealed Case first appeared in 1981; it is now the most common case name on the D.C. Circuit Court of Appeals docket.

The same law that gives the government warrantless access to citizens' electronic communications -- the Electronic Communications Privacy Act -- also gives the government the privilege of preventing service providers from disclosing any information about these requests to targeted users. This blanket opacity is a problem for several reasons (First and Fourth Amendment concerns), not the least of which is no one -- not even Congressional oversight -- can provide an accurate accounting of these requests and their accompanying gag orders.

How large is this secret ECPA docket? Extrapolating from a Federal Judicial Center study of 2006 federal case filings, I have estimated that more than 30,000 secret ECPA orders were issued that year alone. Given recent DOJ disclosures, the current annual volume is probably twice that number. And those figures do not include surveillance orders obtained by state and local authorities, who handle more than 15 times the number of felony investigations that the feds do. Based on that ratio, the annual rate of secret surveillance orders by federal and state courts combined could easily exceed half a million. Admittedly this is a guess; no one truly knows, least of all our lawmakers in Congress.

The courts may be acting as checks against government power. Or they may be acting as rubber stamps. Given the number of gag orders and sealed documents, it's impossible to make that call. The courts are supposed to act as a check against government overreach and the only way to verify they're actually performing this function is to allow the public to see warrants, orders, motions, responses, and other court documents. But the government has pretty much destroyed this part of the accountability process by abusing a multitude of transparency loopholes -- most of those linked to "national security" or protecting law enforcement means and methods.

The government far too routinely -- in far too many routine criminal prosecutions -- deploys gag orders, sealed documents, ex parte presentations, in camera submissions and other tactics like parallel construction to ensure the judicial playing field is never level. These same tactics also prevent the public from seeing what's being done in their name and with their tax dollars.

Smith also points to the inevitable consequences of the government leading by example: the desire to treat public forums as somehow private arenas has bled over to civil litigation as well.

The same FJC study found that 576 civil cases filed in 2006 were completely sealed, meaning that the public was denied any information about the case, including the docket sheet. Rationales for the blackout varied from weak (“the parties wanted them sealed,” “to protect physicians reputations,” “to protect a party’s credit rating”) to non-existent (“17 pro se actions,” “30 habeas corpus and prisoner actions,” “33 forfeitures and seizures”).

Many of those listed still have a government nexus, but even cases that have no government intersection other than the use of the court system will still routinely contain sealed documents.

Even the most mundane employment suit will have a docket sheet littered with “Sealed event” entries.

As Smith notes, the numbers provided by the study are far from comprehensive. To fully tally the number of civil cases with sealed documents would take an examination of nearly every suit filed in federal court. Redacted dockets and sealed documents are apparently just as common in the civil arena, a large number of which can also be attributed to direct government intervention.

It's not one administration or one branch. It's everyone and it's been trending towards opacity for over 30 years. The government desires power without responsibility. The worst part is that the courts appear to be allowing it.

from the more-darkness-and-denials,-please dept

The state of Massachusetts has some of the worst open records laws in the nation, which have not been updated since the 1970s. The main problem is the statutes provide no deterrence for abusive behavior by government agencies and very little in the way of recourse for public records requesters.

The laws -- as they stand now -- operate on the presumption of secrecy, which is completely antithetical to the purpose and spirit of the statutes. There's really no reason the state's public record laws should contain this much secretive bloat. Here's Allison Manning of Boston.com detailing just one of the many problems with the laws.

Our public records laws are abysmal, especially compared to those elsewhere.

There are 19 pages of exemptions alone in the 60-page guide to Massachusetts public records. How does this supposedly progressive state have such backwards open government laws?

[A]fter the Globe challenged State Police for withholding the arrest record of one of its troopers, [t]he state’s supervisor of public records, Shawn Williams, ruled in favor of the police, finding that police had “the discretion to withhold records” that were covered under rules meant to protect criminal rap sheets from being misused; such discretion meant that the Globe could not obtain the names of the five Massachusetts police officers charged with drunken driving. A far more rational interpretation of the criminal-records rule would protect information about criminal proceedings, not the arrest records themselves. After all, the criminal-records law was never intended to open up a memory hole to conceal unflattering information about the police.

The state's House pushed through a set of open records law reforms late last year. It was a decided improvement (what wouldn't be?), but advocates still expressed concern the legislation didn't go far enough. Like many reform efforts, it started out robust and full-figured but was hacked to death by legislators and agencies who preferred to operate in as much darkness as possible.

“This doesn’t fix the fundamental issues with the law,” Michael Morisy, founder of the open records site MuckRock, tells Boston magazine. “Records take forever to get back to people. There’s no mandatory awarding of attorney’s fees, so agencies really don’t care if people sue them because they know by the law there are no consequences even if they lose. And while this bill does offer judges to grant attorney’s fees, that’s entirely discretionary, and what we’ve seen is that when things are discretionary, when things are optional, typically they just don’t happen.”

“One thing that public records law in Massachusetts really needed was teeth, and this bill just doesn’t do that,” Morisy says.

The Senate has introduced its version of the reform bill, and it's already receiving complaints from government entities which feel it swings the needle too far in the direction of accountability. The Massachusetts Municipal Lawyers Association doesn't like much of the Senate's proposed legislation and has issued a five-page memo to its members detailing its concerns. (h/t Michael Morisy)

For one thing, the MMLA wants government agencies to be given the discretion to ignore filers if they believe someone is requesting records too frequently, or simply requesting too much.

S. 2120 provides no protection to a municipality from the frequent and harassing requestor. Considerable staff time is wasted in responding to overly broad and frequent requests. The municipality should not have to respond to someone abusing the system.

The memo does not detail how agencies would determine what constitutes "abuse" of the system, nor what they would have to offer as proof that they are being "harassed" by an open records requester. It appears the MMLA would prefer to have this left solely to the discretion of responding agencies, giving them one more way to refuse to hand over documents.

The MMLA also doesn't like the fact that the legislation would dial back the amount of money agencies can charge requesters or that it would make requests fulfilled in under a certain amount of hours automatically free. It believes all efforts made should be billed to requesters no matter what.

Considering state agencies are well-known for their extreme reluctance to respond to requests in a timely fashion, it's rather rich to see this government body demand that open records requesters have as little time as possible to pursue litigation over delayed responses or refusals.

There is no time period or statute of limitations within which the requestor must appeal to court. As in the House bill, there should be a 30-calendar day time period, from the date of receipt of the SPR’s order, within which a civil action must be filed, whether by the requester or by the municipality.

Statutes of limitations are generally in the one-year range. The MMLA wants one month. The singular purpose of this demand is to allow the state to dodge as much litigation as possible. Thirty days to engage representation and file a lawsuit is an incredibly tight time frame. Open records requesters had better hope everyone's schedule is clear. The MMLA may look like it's acting in fairness when it applies the same time limit to government agencies, but it doesn't point out the head start they'll have: in-house representation.

Other parts of the MMLA memo veer into sheer vindictiveness, as if open records requesters were a pestilence inflicted on honorable government employees. The Senate's bill -- having just been introduced and still sheltered from the carving knives of transparency opponents -- contains an automatic fee award for open records requesters who prevail in litigation against the government. In the interest of "fairness," the MMLA wants this to be a two-way street.

Reciprocity is necessary. If fees are to be mandated against municipalities, fees and costs should also be awarded to the municipality against frivolous and harassing requesters.

The MMLA's take on this conveniently ignores the truth of the matter: the only reason this stipulation exists is because state agencies have proven they cannot be trusted to comply with the law. The longstanding problem with open records laws everywhere in the nation has never been an epidemic of frivolous or overburdensome requests. It has been the ongoing exploration of the outer limits of open records laws by dozens of government agencies who have repeatedly refused to reply to requests in a timely manner. Agencies ignore requests, set up massive "paywalls,"abuse exemptions, knowingly perform inadequate searches for records and otherwise do anything they can to avoid transparency.

The MMLA wants fee shifts to affect requesters -- a move that would do nothing to improve the state's horrendous laws or response track record. It's just a form of bullying being sold as fairness. The entity with deeper pockets and control of the records wants to have the right to smack around citizens for daring to ask for the "wrong" information.

from the cops-need-to-have-rules-all-their-own dept

Body camera footage is a great tool for law enforcement accountability. But all the potential good can all be undone by ensuring the public has no access to the recordings. If recordings become just another internal "document," nothing has been gained by the addition of body-worn cameras.

A House bill that would exempt police body camera video from being released to the public under Michigan's Freedom of Information Act is raising red flags among some attorneys and civil libertarians.

The proposal by Sen. Rick Jones would amend Michigan's 1976 Freedom of Information Act by keeping police body camera audio and video shielded from public disclosure.

Of course, Rick Jones -- a former sheriff with 31 years in law enforcement -- sees nothing wrong with preventing the public from keeping an eye on their public servants. This isn't being done to shield officers from accountability, according to Jones. No, this is being done to keep cops from being mocked by infamous cop-basher, the Internet.

"This is a first step and it will be tweaked,'' he said. "All of the police I have talked with believe that there are many times that private moments are filmed and it's not the sort of thing you want somebody to FOIA and then put on the Internet for entertainment, for people to laugh at.''

Jeezus. Got some very sensitive individuals hiding behind badges, bulletproof vests and FOIA exemptions. I think most would rather be laughed at than reviled. If the worst thing that happens to Michigan cops is a few embarrassing moments (and a host of just-as-embarrassing comments below them) being uploaded to YouTube, they should be grateful. It's far better than having footage of misconduct or excessive force circulating the 'net.

Even the senator's ostensible opponent -- the Michigan ACLU -- agrees that some footage should be exempt from public records requests.

"If the police are sitting in their squad car talking to one another about their personal matters – that doesn't need to be on YouTube,'' [ACLU's Miriam] Aukerman said. "If police go to someone's home and tell them your child has died or your child's been in an accident, that doesn't need to be out in the public.''

Jones says the wording will be "tweaked," but it's unclear how much of it. So far, he's only talked to police officials and officers about their perspective. Until that changes, nothing in his amendment will either. As it stands now, the untweaked version grants a blanket exception to all body camera footage without exception. The following would be added to the list of items Michigan citizens can't obtain via FOIA requests:

(Z) AN AUDIO AND VIDEO RECORDING RECORDED BY A BODY-WORN CAMERA WORN BY A LAW ENFORCEMENT OFFICER IN THE COURSE OF HIS OR HER DUTIES AS A LAW ENFORCEMENT OFFICER.

An earlier bill introduced by a Michigan representative in the House asked for a much slimmer exemption -- footage recorded in private homes. Jones wants it all exempt. Supposedly, he'll be meeting with the ACLU and other interested parties to discuss changes to the wording.

We'll see how much he's willing to budge, considering there's only room on his side for concessions. I'm guessing it won't be much. Jones didn't get named "Legislator of the Year" by the Michigan Association of Chiefs of Police for nothing. He was the one who safely shepherded the state's asset forfeiture "reform" bill through the legislature -- one so badly-neutered by law enforcement meddling that the Michigan Association of Police Officers actually endorsed the final version.

The undated document makes it impossible to determine whether this was written before or after LPD attorney Roger Mallory lost some of his legal guidance privileges as a result of his highly-questionable handling of public records requests.

Whatever the case, it's Mallory's name on the document. After a brief nod towards citizens' rights, Mallory starts suggesting ways the Lakeland PD can violate them -- starting with the horribly stupid suggestion that undercover cops should blow their cover to confront photographers.

A couple of examples of those circumstances in which video-recording/photographing of you might constitute the crime of Resisting might be:

1. You are conducting surveillance from a location under circumstances in which we have a clear and reasonable intention and investigative need to remain secret and the videorecording/photographing can be reasonably expected to include your chosen location such that a viewer of that video/photograph could identify that location, and

2. You are acting in an undercover capacity, you are actively conducting law enforcement business (not, e.g., on lunch break, etc.), i.e., you are actually performing some legal duty (e.g., conducting an investigation), and the video-recording/photographing would somehow reveal your identity as a police officer, thereby endangering you and/or denying you the opportunity to continue to perform your legal duty.

So, rather than ignore the recording and maintain cover, officers should reveal themselves, thus clearing up any questions as to whether or not they were participating in an undercover investigation. Presumably, the PD's attorney feels the crime of "resisting" would justify seizure of recording devices and the deletion of captured images/video. The guidance doesn't detail how this would play out in court, but it likely doesn't matter. If the footage is deleted, the undercover operation sabotaged by officers making "resisting arrest" arrests would still be intact and taxpayers will foot the bill for any lawsuits that follow.

The guidance also attempts to twist the state's wiretapping statute to cover audio recordings of officers performing their public duties. Mallory says citizens must either inform officers (verbally or in writing) that they are recording or prominently display the recording device. If neither of these two things happen and the officer has a "reasonable" basis to believe they aren't being recorded, they may be able to charge a citizen with a felony.

If, however, you had an objectively reasonable basis upon which, it was your expectation, your oral communications/voice were/was not being recorded, and the person recording intended to record, the subject commits the felony crime of wiretapping (see Section 934.04(1) and (4), F.S.).

Mallory does caution officers that courts aren't very tolerant of officers who abuse wiretapping statutes to shut down recordings or seize devices.

[T]he determination by a court of the presence or absence of objective reasonableness will be made, in part, on the basis of the modern reality of the abundance of video and audio recording devices in our environment. We would be wise to remember that the courts will not likely accept your expectation of non-recording if that expectation is tainted by hypersensitivity or something the courts might construe to be an unusually high degree of paranoia.

It also warns officers that abusing "resisting arrest" charges or otherwise claiming recordings were somehow "obstructing" them in their duties will similarly be viewed dimly by presiding judges.

The case law does not support an officer's position that a citizen who appeared to be video and/or audio-recording the officer/scene caused the officer to be distracted, and that mere distraction rose to the level of actual obstruction or opposition of the officer in their performance or attempted performance of their legal duty (i.e., the commission of the crime of Resisting). [...] Absent additional facts beyond mere distraction, a court will conclude the crime of Resisting did not occur and the officer was being unduly hypersensitive, thin-skinned, and perhaps displayed conduct that was less than that of a law enforcement professional.

Mallory arrives at this sensible conclusion…

Going "hands on" and/or seizing a video-recording device requires a lawful basis; examples of which are provided above. An officer's subjective expectation that they will not be videorecorded while conducting their enforcement business is not sufficient to justify this officer conduct.

...before wrapping the guidance up by suggesting the state's wiretap laws might provide useful loopholes. After all, most devices that record video also record audio.

Audio-recording, however, is somewhat different. If the person whose oral communications are being recorded has a reasonable expectation their oral communications are not subject to interception/recording, then the intentional audio-recording of them by a citizen constitutes the felony crime of wiretapping. To the very short list of legal bases for going "hands on" and seizing video-recording devices offered above, if the recording is audio-recording, we can add the legal basis to arrest and seize the recording device as evidence of the crime of wiretapping.

Finally, in the ballsiest bit of sour-graping ever included in police legal guidance, Mallory bitterly points out that citizens have access to a "good faith exception" of their own:

Be aware, however, that in charging the crime of wiretapping, prosecution and conviction is not guaranteed as the law of wiretapping includes a well-hidden, but complete criminal defense of "good faith reliance" on a "good faith determination" that the criminal law of wiretapping did not apply . (See Section 934.1 0(2)(c), F.S. , misleadingly entitled only "Civil Remedies.'')

Not so great when citizens have access to the same defense that cops so often use to excuse their Constitutional violations, is it? Hopefully, any bogus wiretapping charges leveled against citizen recorders will be dismissed by courts cognizant of the fact that they extend this courtesy to law enforcement far too often.

from the worst.-FBI-director.-ever. dept

FBI director James Comey is now beclowning himself by endorsing the so-called "Ferguson Effect." Some major US cities are experiencing increases in violent crime, and law enforcement agencies are blaming this on the fallout from the Michael Brown shooting.

Supposedly, law enforcement officers are afraid to do their jobs properly, fearing reprisal, public humiliation or possible prosecution for deploying any form of force. Further extrapolations of the "Ferguson Effect" theorize that the public's respect for law enforcement has fallen so low citizens are now often openly hostile.

It's telling that this is called the "Ferguson Effect," rather than say, the "Garner Effect." Both officer-involved-killings happened within a few weeks of each other and both touched off massive protests. In both cases, grand juries failed to return indictments against the police officers responsible for the deaths of two unarmed black men. However, the shooting in Ferguson lacked a crucial element: a video recording of the incident. In Ferguson, the evidence presented was a mess of contradictory eyewitness testimonies.

In the New York City incident, clear recordings of an NYPD officer choking Eric Garner to death were all over YouTube before the NYPD could even issue a coherent statement. For some reason, it's called the "Ferguson Effect" even though it was NYPD officers who first stated a reluctance to lay down on the job in response to the backlash.

He said his conversations with officers often come back to cellphones. He said they describe encounters with young people and their cellphone cameras "taunting" them "the moment they get out of their cars."

"They told me, 'We feel like we're under siege and we don't feel much like getting out of our cars,'" Comey said.

Police have always performed their duties in public, observed by many. But until recently, any footage of these encounters were left to dashcams. In the absence of recordings, it was the public's word against the officer's, and the officer's word usually won out. Now, police officers no longer have the luxury of controlling the narrative. Apparently, it's this lack of control that's preventing them from doing their jobs.

The "Ferguson Effect" narrative goes hand-in-hand with the "War on Cops" -- the bogus theory that cops are being targeted and killed more frequently simply because they're cops. In both cases, there's no data backing up these assertions. Any perceived spike in violence cannot be traced back to law enforcement officers being more wary of deploying force. Even if it could, the problem still lies with the police, rather than the public.

Public servants performing their duties in public should expect to be observed. If officers can't handle the "taunting" of camera-wielding citizens, they should exit the law enforcement business. If they feel imprisoned in their own vehicles by members of the public wielding nothing more dangerous than recording devices, they're not cut out to handle the actual dangers of the job.

Comey's furtherance of this bogus narrative is not just stupid. It's also hypocritical. Constant observation -- a.k.a. "surveillance" -- alters people's behavior. Comey admits as much in his remarks on the "Ferguson Effect."

So the suggestion, the question that has been asked of me, is whether these kinds of things are changing police behavior all over the country.

And the answer is, I don’t know. I don’t know whether this explains it entirely, but I do have a strong sense that some part of the explanation is a chill wind blowing through American law enforcement over the last year. And that wind is surely changing behavior.

I actually do think there’s something to the chilling effect of surveillance (though, again, what’s happening to cops is targeted, not dragnet). But if Comey has a problem with that, he can’t have it both ways, he needs to consider the way in which the surveillance of young Muslim and African-American men leads them to do things they might not otherwise do, the way in which it makes targets of surveillance feel under siege, he needs to consider how the surveillance his Agents undertake actually makes it less likely people will engage in the things they’re supposed to do, like enjoy free speech, a robust criminal defense unrestricted by spying on lawyers, like enjoy privacy.

Law enforcement can dish it out, but it can't take it. That's the true definition of the "Ferguson Effect."

from the oh-you-poor-babies dept

We've been discussing the concept of "fair use" and how ridiculous it is that the USTR seems to be ignoring it. Back in 2012 there was great fanfare out of the USTR, when they said, for the very first time, they'd be including "limitations and exceptions" in the TPP proposal. "Limitations and exceptions" being a misleading euphemism for fair use (and some other related concepts all focused on the public's rights). However, as we noted soon after, the leaked text showed that while it was true that this would be the first such agreement that included such a concept, it only did so by limiting the ability of countries to implement a full fair use regime.

Then, with the latest leak of the negotiating text (from right before the most recent round of negotiations) we noticed how ridiculous it was that the fair use section was voluntary while all the sections on copyright enforcement were mandatory. Specifically all the enforcement sections said that countries "shall" implement this or that. But when it came to "limitations and exceptions" it just said that countries "shall endeavour to achieve appropriate balance." In other words: you have to ratchet up copyright law, but with fair use, you know, maybe think about it and try your best.

As of last month, it seemed that all of the TPP countries had agreed to this language. In late July, however, tech companies' renewed pressure seemed to have changed the game. The USTR offered to go back in and revise these provisions ahead of the last negotiation round. According to a spokesperson for the U.S. Chamber of Commerce, in exchange for support for the controversial Fast Track legislation, the USTR promised to make the TPP's exceptions and limitations language more permissive and be a requirement, rather than being purely a suggestion, for all TPP countries.

And... guess who went ballistic? Yup. Hollywood.

According to Inside U.S. Trade, rightsholder groups like the Motion Picture Association of America (MPAA) are "livid" about the USTR's move to revisit the language on exceptions and limitations. They're pushing back hard, urging members of Congress—including every House member from California—to pressure the USTR not to touch these closed provisions. Why? Probably not because revisiting the language will actually cause any real harm to creators. The more likely explanation is that the copyright maximalists are worried that their tight grip over the USTR is slipping.

This isn't all that surprising. Remember, as part of the Sony email leak, one of the emails showed MPAA boss Chris Dodd freaking out about the possibility that the TPP might include some sort of fair use. From the letter Dodd sent to USTR Michael Froman::

I am writing to you today regarding your Wednesday remarks at the Center for American Progress. I am concerned about your suggestion that previous free trade agreements’ copyright provisions were unbalanced and that USTR has addressed this lack of balance by including “fair use” in the TPP. Quite to the contrary, the recently ratified US-Korea FTA was supported by a broad cross-section of US industry, from tech and the internet community to the copyright community, and furthermore has been held up as a model agreement.

As I know you are aware, the inclusion of “fair use” in free trade agreements is extremely controversial and divisive. The creative community has been, and remains, a strong and consistent supporter of free trade, but the potential export of fair use via these agreements raises serious concerns within the community I represent. Over the last 24 hours, I have received calls from my member companies questioning what they perceive as a significant shift in US trade policy and, as a consequence, the value of the TPP to their industry.

Amusingly, this is the same MPAA who ridiculously claims to love fair use. As Sutton notes, this reaction is almost certainly fear over losing lobbying control over the USTR -- a main channel through which it has pushed its agenda for the past few decades.

But there is another important point in Sutton's post: why should it require Google and other internet companies to step up before the USTR took this issue seriously? Plenty of us out here in the public have been arguing about this issue for years -- including in letters sent directly to the USTR. But we're totally ignored until "big industry" comes along and says the same thing. That's really messed up.

The big media lobbyists' theatrics over this minor amendment are embarrassing, but they do raise one important issue: our trade negotiators are a lot less interested in the needs of ordinary users and creators than the needs of powerful companies. Why else was a last-minute intervention by Google sufficient to bring the USTR back to the negotiating table on this topic, where the sustained interventions of EFF and 10 other major public interest groups from around the world were not?

These kinds of regulatory laundering efforts shouldn't be at the whims of big companies, whether or not you agree with the policies being pushed. I'm just as uncomfortable with internet companies pushing the agenda as I am with Hollywood companies doing so. This entire process has been a ridiculous lesson in corporate give aways with little interest for the public. The only thing "transparent" here is how the USTR is focused solely on the desires of big companies, with absolutely no concern for the public interest. That seems like a fairly big problem, especially considering that Congress basically abdicated its (Constitutionally-guaranteed) role to step in and block bad provisions of these agreements.

The Maryland appeals court has ruled that police departments' internal investigation documents are "personnel files" and thus exempt from public records requests. The decision came in response to a lawsuit filed by the ACLU on behalf of Taleta Dashiell, who was seeking a copy of documents related to her own sustained complaint against Sgt. John Maiello of the Maryland State Police.

After the Court of Special Appeals determined that the Circuit Court erred by not requiring the State Police to create an index of the withheld documents and by not conducting an in camera review of the documents, the State filed a writ of certiorari asking us to consider the following question:

Did the Department of State Police properly invoke the Maryland Public Information Act’s (MPIA) exemptions for personnel records and records that are confidential under other law — here the Law Enforcement Officers’ Bill of Rights — to deny a request for the internal affairs records of an investigation into the conduct of a specifically identified state trooper?

Maryland was the first state to pass a LEOBR, in 1972, and by now many states have followed, invariably after lobbying from police unions and associations. Often the bills are sponsored by Republicans, who seem to forget their normal skepticism of public employees as an interest group when uniformed services are involved.

Among other things, the LEOBR grants police officers the "right" to have up to 10 days to respond to misconduct allegations and to be able to appoint a lawyer of their choosing to represent them in what is normally just an employer-employee interaction anywhere else in the working world.

Dashiell was attempting to obtain documents related to her complaint against Officer Maiello, who was captured on her voicemail referring to her (twice) as a "nigger." From that point forward, the Maryland State Police did everything it could to keep her from seeing anything related to Maiello or her complaint.

Supposedly, the state provides an exception to the personnel records exception in the case of the "person of interest" -- which should have covered Dashiell's request. Despite existence of such records being confirmed by a letter from the MSP to Dashiell, the department refused to turn over the requested files. The MSP was creative in its stonewalling of Dashiell's request, treating the retirement of the officer charged with fulfilling requests as the end of the line for this inquiry.

The MSP returned the March 2, 2010 MPIA request to the ACLU stamped “addressee unknown.” Apparently, unbeknownst to Ms. Dashiell and the ACLU at the time the MPIA request was sent, Lieutenant Colonel Fischer had retired from the MSP.

The MSP returned the MPIA request, failing to even identify the new custodian, rather than deliver it to the current custodian of records.

Dashiell sent a new request to the new custodian of records, which was denied in its entirety -- including her request for, if nothing else, an index of the records held.

The lower court granted the MSP summary judgment, claiming the files requested were exempt from disclosure, even considering Dashiell's "person of interest" status. She appealed, but the appeals court has now arrived at the same conclusion.

The court's opinion says that the law is law, no matter how stupid under these specific circumstances. The sustained complaint is treated no differently than an unsustained complaint and no matter how much information has been made public already, the officer's privacy trumps the public's interest. The court strains credulity by suggesting the release of such information would negatively affect future misconduct investigations.

The plain language of the Public Information Act, also, does not differentiate between “sustained” and “unsustained” complaints. A determination that a sustained finding requires disclosure of personnel information, though, would affect all public employees, not only the police force. Further, mandatory disclosure of personnel information related to sustained findings could chill the disciplinary process, rendering those in control less willing to sustain a finding of misconduct.

It is insane that the court would actually believe that the public has the power to actually "chill" any government action. The state's laws -- combined with the Bill of Rights extended to police officers only -- create their own chilling effect. Police officers know that it's highly unlikely any record of their misconduct will ever reach the eyes of the public, which creates an incentive for future abuse. This has a chilling effect on citizens, who know that it's highly unlikely any officer will receive significant discipline for wrongdoing, as the entire process is allowed -- by law -- to be conducted in total darkness.

The court also points out that it agrees with lower courts' findings: despite Dashiell being the one to file the complaint, she is not the "person of interest." Officer Maiello is. So if anyone is ever going to make records of police misconduct complaints public, it can only be the officer against whom the complaint was filed. Which means this will NEVER HAPPEN.

Two judges offered their dissenting opinion, pointing out that the majority expressly dodged a question crucial to the determination of whether these files should be eligible for "personnel information" protection. There's a difference between "unsustained" and "sustained," and the court has chosen bypass this delineation and defer to the law's wording instead.

This result is far different from the circumstance of permitting unsubstantiated allegations of a complaint to be made public. In sustaining a complaint against one of its officers, a law enforcement agency acknowledges the truth of the very facts that “directly pertain to employment and [the officer]’s ability to perform [his or her] job.”

In contrast to such facts, the discipline that the law enforcement agency decides to administer to the officer does not directly pertain to employment or the officer’s ability to perform his or her job. Plainly put, the officer did what the officer did, regardless of how the law enforcement agency decided to respond. The administration of the discipline is an action of—and thus reflects the judgment of—the law enforcement agency, not the officer. Thus, a record of discipline based on a sustained complaint against a law enforcement officer is not a personnel record; instead, it is among the very types of document that the Public Information Act is designed to make available to the public: a document that reflects how a public agency responds to an employee’s proven misconduct.

This is how it should be. But it isn't. The state law allows misconduct to go unexamined and grants public employees a privacy expectation in their publicly-funded employment that simply shouldn't exist. Even records related to unsustained complaints are of value in terms of accountability, but at the very least, records of sustained complaints should be excluded from the law's personnel records exemption.